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A Community Guide to Using Alternative Dispute Resolution to Secure Environmental Justice

May, 2011

Part 2: Getting a Seat at the Table

If, after researching your problem, your community determines that ADR could help, it is time to persuade the other party or parties to participate, decide which ADR technique is right for your community, and set ground rules that meet your needs.

Initiating ADR

The most common way of initiating an ADR process is by sending a letter to the party with whom you want to negotiate. If you already have a relationship with someone at the company or agency, you can address your letter to that person or ask that person where to send the letter. Otherwise, you might address the letter to the manager of a facility, the head of a government office, or whomever you reasonably believe has the power to address the problem. Here are a few tips for making your letter persuasive:

Briefly explain the issues you want to discuss. This will help the recipient understand why you are concerned and anticipate whether you can find common ground. Briefly describe the environmental conditions in the community. At this stage, you should not state specific demands.

For instance, your letter might state that your community has observed the facility emitting particulate matter that looks like black soot and settles on neighboring homes. You might then explain that your community has a high rate of asthma and other respiratory illnesses. You should include specific facts from your research, such as health data that may include available county health statistics, the results of your own health surveys, or references to a community outbreak of diseases associated with the facility's emissions. You could also include relevant environmental data, such as results from air monitoring or soil sampling. Including this information will show the company you have done your research and are serious about putting in the time and effort involved in finding a solution.

Explain what you see as the benefits of ADR. Describe the process as an attractive alternative that can avoid bad publicity and potential litigation, as well as providing an opportunity to be seen as a good neighbor to the community.

Invite the other party to help design the ADR process. This letter is an opportunity to show that you will be a good negotiating partner. If you are not yet convinced that ADR is the right choice for your community, you can propose a convening session to help determine whether ADR will work under the circumstances, as discussed above.

Set a deadline for responding. This makes it harder to ignore your letter. If the date passes and you still have not received a response, find out why it is taking so long. If you cannot uncover a satisfactory reason for the delay, you can send a letter to someone in a higher position of authority, such as the facility's parent company. Or you can try other techniques to persuade the recipient of your letter to respond, like community organizing and media outreach—you might even want to mention these alternatives in your initial letter to encourage a response.

CC'ing. Often, you should indicate in the letter that you are copying (or "cc'ing") other stakeholders or authorities. This may goad the other party into paying attention to your request.

Appendix G includes a sample letter to request ADR that can be customized to fit the particular circumstances in your community.

Government agencies can play a variety of roles in an ADR process involving an environmental justice issue. In some cases, the government can be a community ally and sit at the table to express support for the community's positions. In other situations, a community might end up negotiating against a government agency that it believes is acting unreasonably or inadequately enforcing the law.

The government also could influence the course of an ADR process without even being present at the table, by providing valuable resources for researching and preparing for ADR—or perhaps even conducting tests that are essential to understanding particular environmental impacts. Or companies may become more likely to cooperate with the community if they believe that failure to reach an agreement may lead to a government enforcement action. The government may also play a part in implementing whatever agreement the community and the company reach. As you initiate ADR, think about the roles that government agencies (local, state, or federal) may play.

The Various Approaches to ADR

Generally, there are three main approaches to ADR. They have a few things in common. First, the parties can never be forced into an agreement. Second, any number of parties can participate. Third, these approaches will only work if everybody is invested in the process and committed to negotiating in good faith.

ADR Approaches

Direct negotiation. Direct negotiation, or "unassisted negotiation," means simply sitting down with representatives of the company or government agency with the power to resolve the problem, and trying to come up with a solution without the use of an intermediary. Direct negotiation may be the right option if you think you can develop a productive working relationship with the other parties. After all, if you are well organized and can get what you want through direct negotiation, you might not gain anything by having an outsider at the table. On the other hand, if you try direct negotiation and it does not work, the process does not need to end there—mediators are often brought in when direct negotiations have failed.

Mediation. In mediation, a neutral (called the "mediator") helps parties reach an agreement that is satisfactory to everyone involved. The mediator's job is to help each party communicate its position clearly and to understand the positions of the other parties. While the mediator's main role is to ensure a fair process, she or he also may suggest creative solutions. Mediation can be a good option when the parties are unable to sustain a productive dialogue on their own, or when the parties are far apart in terms of what they seek.

If you think a mediated approach might work for your community, you might also want to learn about other, similar forms of ADR in which a neutral helps the parties to communicate. One such option is an ombudsman, a government official who receives complaints from members of the public, then investigates the problem and brings people together to talk about solutions. The EPA has ombudsmen who can often help with environmental justice issues (http://www.epa.gov/adr/cprc_adrcontacts.html). Your state government may also have ombudsmen. These ombudsmen do not charge a fee.

In facilitation, a neutral (called the "facilitator") focuses on making the process fair without becoming involved in the issues. For instance, the facilitator will help set ground rules for a conversation, make sure that information is flowing, and keep the conversation on track. Facilitation is appropriate when the dispute is not very emotionally heated, the parties' positions are not widely divergent, and the parties have some degree of trust in each other.

Non-binding arbitration. In this form of ADR, the neutral (called an "arbitrator") hears from all parties to the dispute and informs them how he or she thinks the dispute should be resolved. The parties then decide whether they will follow the arbitrator's plan. Of all the forms of ADR, arbitration is most like litigation, because both sides present evidence to a neutral decision-maker who plays a role like that of a judge in court. Non-binding arbitration is rarely the best option for environmental justice communities because it can be expensive and time-consuming, and parties with greater financial resources tend to have a practical advantage, just as they would in court. Then again, there may be instances where the community's case is strong and clear, and arbitration may be somewhat more likely than other ADR approaches to result in a satisfactory, uncompromising solution. The fact that a neutral decisionmaker agrees with the community should help encourage the other side to agree to the community's needs. This is different from court-ordered arbitration because there is no penalty for rejecting the arbitrator's decision.

Choosing Among ADR Approaches

In deciding which type of ADR to propose, there are several factors to consider. First, do you already have—or can you likely establish—a good working relationship with representatives of the other parties? If so, you may want to choose to meet without a neutral or to use an approach that minimizes the role of the neutral. On the other hand, meeting with a neutral can help strengthen communication and level the playing field when your experts cannot attend the meetings. Second, you may also base your decision on which kinds of free ADR services, if any, are available in your local area.

The decision on whether to use a neutral may depend on whether there is funding to hire one. In some cases, the other party may be willing to pay the neutral's fee. Alternatively, U.S. EPA may provide a neutral for the ADR process (see box). The EPA is most likely to provide mediation services if the EPA is a party at the table, which may happen when a dispute involves a federal permit, a federal facility, or the clean-up of a Superfund site on the National Priorities List. Some states offer community dispute centers that provide affordable mediation services.

Choosing a neutral

Any party can nominate individuals to serve as neutrals in the ADR process. Both sides then interview the neutrals under consideration. Finally, every party to the ADR must agree on who will serve as the parties' neutral.

Finding potential neutrals. A good place to start is to ask for recommendations from other community groups in your area who have tried ADR. You can also find a neutral through one of the many independent groups that specialize in dispute resolution, described in the box below. It can be daunting to sort through long "rosters" that list many neutrals who work in an area, but you can ask the organization with a roster to recommend somebody with experience in environmental justice issues. If this does not work, you can narrow the list of neutrals yourself. Simply call or e-mail several neutrals and ask whether they meet your basic requirements (experience with community groups, experience with similar issues, years of experience, etc.).

Where can I find a neutral?

U.S. Institute for Environmental Conflict Resolution (ECR)—This independent agency helps resolve environmental disputes involving the federal government. The ECR website provides a roster of environmental conflict resolution practitioners, or neutrals, as well as practitioners who specialize in working with Native American communities. See http://roster.ecr.gov/Search.aspx (To search for neutrals with environmental justice experience, click on the box next to "Practitioner-related Type of Case/Issues." When a new menu pops up, click the box next to "Environmental Justice," close the pop-up window, and hit "search").

U.S. EPA—When the issue you are dealing with has a connection to the federal government or federal law, such as having a federal permit or being a National Priority List Superfund Site, the U.S. EPA can connect you with neutrals with experience in environmental justice communities. EPA also has ombudsmen that specialize in various issues, such as pesticides and hazardous waste disposal. http://www.epa.gov/adr/cprc_adrcontacts.html

Community dispute centers—These publicly-funded mediation centers operate in many states. They offer mediation services at little or no cost for the people of that state. Mediations conducted by these centers typically involve interpersonal disputes. One tool for finding a community dispute center is the "program locator" at http://www.nafcm.org/.

State and federal courts—Almost all courts maintain rosters of neutrals.

State offices of dispute resolution—Some state governments have offices or agencies that specialize in dispute resolution.

Private mediation firms—Sometimes private firms, such as JAMS, Inc. (http://jamsadr.com), can connect you with a neutral who is willing to work on a pro bono basis.

Interviewing potential neutrals. Once you have compiled a list of neutrals who may be a good fit for your situation, it is time to consult with the other parties to select one from the list. To ease this process, all parties might agree in advance on the key criteria for selecting a neutral.

You must interview any potential neutral, either in person or by phone. Usually, all the parties interview a potential neutral at the same time, but you can also choose to do your interviews independently. If you do conduct interviews together, choose the questions you ask carefully. You do not want a promising neutral to be rejected by another party because he or she gives an answer to one of your questions that sounds great to you but not so great to the other parties. For example, in a situation involving air pollution, avoid asking something like, "So, what do you think of acid rain? Isn't it horrible?"

Remember that everyone must agree on the neutral and each party will be wary of any neutral who seems biased. It is important not to say that your favorite neutral is the only one you are willing to work with, as this will probably encourage the other party to reject your choice.

Alternatively, the other side may nominate potential neutrals. In this case, you still want to interview all of the nominees to decide who you most want to work with. Approach these candidates with an open mind. The fact that the other side nominated them does not necessarily mean they will be biased against your position.

Neutrals have different styles and approaches. Here are some basic questions you may want to ask during the interview:

How does this neutral work? Give the neutral an opportunity to explain his or her process. Keep in mind that the neutral will not be able to predict how your unique ADR process will turn out; everyone is often surprised by what happens along the way.

Does the neutral meet with parties separately? Sometimes, neutrals prefer to meet with the parties separately in order to speak frankly, calm heated emotions, and understand how far apart the sides really are on key points. At other times, neutrals meet with all parties together to encourage direct, efficient communication. This is called a "joint session." Most neutrals use some mix of joint and separate sessions, but it is important to understand your neutral's philosophy on how parties should meet.

What does the "agreement to mediate" provide? An agreement to mediate is an agreement that all of the parties make with a neutral before the negotiations start. It explains what you can expect from your neutral and what your neutral will expect from you. Although each ADR session is unique, most neutrals use a single form that outlines their general approach. If you are working with an ombudsman, a "memorandum of understanding," or "MOU," serves a similar purpose.

Does the neutral require "mediation statements"? A mediation statement is a short, written document that describes the history of the dispute and any proposed solutions. Each party writes its own mediation statement.

The neutral should understand environmental justice communities. It is important for you to find a neutral who knows how to handle negotiations between groups that may have very different levels of wealth and political power. While the questions above address issues that will come up in any ADR process, you might also wish to consider:

If the community's negotiators must balance their role in ADR with jobs and family responsibilities, can the neutral work with your schedules? Will he or she help communicate your scheduling needs to other parties?

Does the neutral make you feel comfortable? Can he or she set the right tone for the ADR process? It can be hard to pin down, but the personality of a neutral can make a big difference. The neutral is responsible for making sure that everyone is treated with respect, and that any disrespectful behavior does not derail the ADR process.

Setting the ground rules

Before you actually sit down for negotiations, you will have to sort out the many small details of your ADR process. If you have a neutral, he or she will work with you to make these decisions. Regardless of the type of ADR you are using, the following logistical issues should be covered in advance:

Scheduling meetings. Most negotiators for the community will be volunteers who have to balance ADR with all their other obligations. This can make scheduling a challenge. Be sure to communicate your needs clearly. For ADR to work, the other parties should respect your needs.

Where to meet. Avoid holding all meetings on either party's "home turf." On the other hand, it is fine to take turns meeting in the community or at a company or government agency office. Choose private locations where everyone will be comfortable, with access to restrooms, water and vending machines, and the like. Also, there should be access to a separate room where either side's representatives can step outside of the main room to speak privately. You might be able to find a good—and free—meeting space in a local library or community center.

Information exchange. It may be easier to "hit the ground running" if you and the other parties exchange information before you start negotiating. By sharing what you already know about a problem, you can demonstrate that you and your community's concerns must be taken seriously. This can also help highlight up front the areas of agreement and disagreement, which saves time during the actual ADR sessions. Additionally, by receiving information from the other side, you can deepen your understanding of the problem and, ideally, do a better job of evaluating potential solutions. If you can trust the other side to provide accurate and complete information, this will be more efficient than doing all the research on your own. To start this process, you can ask the other parties if they would like to do an information exchange and request whatever information you think is relevant.

Technical data. It is impossible to have a productive discussion if one side is relying on technical data that the other side does not understand. There are a few different ways to avoid this problem. First, you can agree that all data must be presented in an understandable format. Second, you can have your own expert review the data and make sure the other party's analysis makes sense. If you do not already have experts on your team, you can ask the other party whether it would pay for an independent scientist, or other suitable expert, to consult with you. Your neutral may know about additional resources for finding an affordable expert who will help explain and analyze complex technical data.

Publicity. In the business world, negotiations—and any agreements that result from them—are typically kept secret. This type of confidentiality is often not an option for community disputes, because the public has legitimate concerns and a right to know about what is going on. At the same time, you should be careful about publicly criticizing private statements made by another party during the ADR process, because of the potential that it could interfere with or derail progress in the negotiations. Here are some issues you should address early on: Talking to the press. If there is widespread interest in your dispute, how will you keep the press informed or respond to questions from reporters? Sometimes the parties will draft joint press releases; this ensures that everyone agrees on a single message. Another option is for the parties to agree at the end of each negotiation session on how everyone will communicate with the press individually. You may decide to hold closed sessions and wait to see how the process turns out before speaking to reporters. The key is to agree on a system—otherwise, one person's communication with the press could interfere with the ADR process.

It is also important to agree on whether parties will be free to talk about what is happening outside the ADR process. Be careful of any agreements not to talk to the press about opposing parties if the community needs to continue drawing attention to ongoing problems, such as an emissions flare-up at a coal plant, that occur while the ADR is taking place.

Getting community buy-in. Make sure the other parties understand that you cannot accept any final agreement without first consulting with other affected citizens in the broader community.

Corporate or agency hierarchies. Likewise, make sure you understand what the other party has to do to approve and implement any agreement. For instance, you may negotiate and reach agreement with a factory manager, only to find out he needs the company president's approval to finalize an agreement.

One suggested rule. One rule sometimes used in ADR settings to reduce tension is that "Outside of a mediation session, nobody can describe what another party said in the negotiations." In other words, with this rule in place, nobody can put words in somebody else's mouth, and each party remains free to talk about its own goals, achievements, and challenges.

Communications between meetings. Sometimes it will be necessary to communicate with members of the other side between meetings in order to follow up on particular questions or to let people know of new developments that may affect the process. You should work out the ground rules for these communications when you first meet with the neutral or at the initial negotiating session. These may address issues like keeping the neutral advised, and establishing a single point of contact for each side so team members are not left out of the loop or surprised by private communications between other members.Before the first meeting, you should work out within your own team how to deal with communicating to one another about any conversations, e-mails, or new information that may be received between meetings. You should make sure your team members are advised promptly of information that is communicated by the other side. Communications received by someone other than the designated point of contact should be immediately passed on by that member to your team's designated contact person, in order to keep track of the information and keep the entire group's knowledge up to date.

Obviously, you will want to work with a neutral only if you agree with his or her approach, but do not be afraid to ask the neutral to adjust the usual process to meet your particular needs. You can expect the neutral to be responsive to your reasonable requests to modify or improve specific parts of his or her plan. Try to anticipate your needs as much as possible before the ADR process begins, because other parties may look skeptically on requests for changes if they are made after the process has begun.

The Community Gets a Seat at the Table in Maple Plains

The steering committee sent a letter, signed by all its members, to the manager of the Belvedere Steel Mill, describing their research, identifying the community's concerns, and mentioning the environmental laws they believed Belvedere was violating. In the letter they mentioned they would be willing to consider attempting ADR rather than other approaches the community might take. They also mentioned that if they did not receive a response within two weeks, several steering committee members would come to Belvedere's office and wait there until someone spoke to them.

Less than a week after they posted the letter, a Belvedere manager called Mary. He denied that the company had violated any laws or regulations, but suggested a conversation. The manager said he would be willing to meet with a small group of community members.

The steering committee members let the larger group know that the company had agreed to a meeting, and decided that Mary and Ken would attend and report back on the company's response. Mary and Ken prepared carefully for the meeting by reviewing all the information they had gathered. They agreed that they would try to get the company to enter into an ADR process as a way of addressing the community's concerns.

The community's research paid off: the information Mary and Ken presented at the meeting convinced Belvedere to take the community seriously. After the meeting, Ken and Mary reported that the company had agreed to consider entering into mediation, saying it might help with communication. One of the steering committee members knew a workers' rights activist who had some good experiences with ADR between workers and employers, so they asked her to recommend a few neutrals. Because all parties needed to agree on the neutral, Mary, Ken, and a Belvedere manager interviewed potential mediators and agreed to use the one with the most experience in Maple Plains. The interviews also gave Mary and Ken a better understanding of what to expect from the ADR process.

Mary, Ken, and Belvedere's two negotiators then met with their mediator to set ground rules. Everybody participated in this conversation, and they agreed that the opposing sides would show respect to each other throughout negotiations by listening and not interrupting. They also agreed not to speak to the media about what the other side said during negotiations. They chose the Maple Plains Community Center as their meeting place because it was available in the evenings, after the work day was over.